Hajia Aisha Buhari & Ors V. Haddy Smart Nigeria Ltd & Anor (2009)

LawGlobal-Hub Lead Judgment Report

AYOBODE O. LOKULO-SODIPE, J.C.A.

The Respondents in the instant appeal were the Plaintiffs in the action which they initiated against the Appellants (Defendants) at the High Court of the Federal Capital Territory, Abuja. The claims of the Respondents as endorsed on the Writ of Summons read: “The Plaintiffs claim against the Defendants jointly and severally as per the Statement of Claim”, Paragraph 38 of the Statement of Claim wherein the claims of the Respondents are set out reads: –

“Whereof the plaintiffs claim against the Defendants jointly and severally the following reliefs:

(1) An order giving vacant possession of wing A of the first floor and wings A & B of the 2nd floor of the property known as Prime Plaza and situated at plot 1012 Ademola Adetokumbo Crescent, Wuse II, which the 1st Defendant holds of him and occupied by the 2nd and 3rd Defendants to the Plaintiffs.

(2) The sum of N5,335,155.00 being the balance of the arrears of rent and service charges from 1st January, 2004 – 31st December, 2004.

(3) The sum of N27,664,000.00 being the arrears of rent and 15% services charges owed the Plaintiffs by the Defendants from January 1st, 2005 – October 2007.

(4) Manse (sic) profit and service charge at the rate of N832,000,00 per month from the date of filing this action till the date possession is given to the Plaintiffs.

(5) 10% interest on the judgment sum, from the date of judgment to the date of final liquidation of the judgment debt.

(6) An order directing the defendants to reinstate the spaces they occupied to the tenantable condition they were before they took over possession and reconstructed them.

(7) The cost of this action.”

The Appellants as Defendants entered a conditional appearance to the action of the Respondents. This is on page 72 of the Record. They also filed a joint Statement of Defence and therein questioned or challenged the jurisdiction of the lower court to entertain the action. The challenge to the jurisdiction of the lower court, was predicated on the following (i) that the action is fundamentally defective and grossly incompetent as the Respondents severally and/or jointly have no locus standi to maintain the same against them (i.e. the Defendants/Appellants); and (ii) that the Statement of Claim does not disclose a reasonable cause of action, and the suit is vexatious, frivolous and abuse of court process. As indicated in the Statement of Defence, the Defendants/Appellants duly applied to set the issues of law raised therein down for hearing as preliminary points of law vide the motion on notice at page 87 of the record.

The motion in question was brought pursuant to Order 22 Rule 2(1), (2), (3) and (4) and Order 23 Rules 20 (A) and (6) of the High Court of the Federal capital Territory, Abuja Civil Procedure Rules 2004 and under the Inherent Jurisdiction of the Court. The Defendants/Appellants sought for an Order striking out the Statement of Claim and dismissing the action for want of jurisdiction to entertain the suit. The grounds of the application as set out in the motion read:-

(i) The service of the Originating Summons (sic) is incurably bad and fundamentally defective because there was noncompliance with the provisions to indorse the mode, date of service and signature of the process server on the Writ of Summons and Order 4 Rule 8(1) and 11 Rule 31.

(ii) The Plaintiffs have no locus standi to institute this proceedings as there is neither Landlord/Tenant relationship between the 1stPlaintiff and the Defendants nor is their (sic) a valid instrument of authorisation in favour of the 2nd Plaintiff to maintain this action.

(iii) The conditions precedent to maintain this suit against the Defendants have not been satisfied as the Statutory Notices to Quit and Delivery of Possession have not been served on the Defendants.

(iv) The suit is frivolous and vexatious a gross abuse of court process and does not disclose a reasonable cause of action against the Defendants.

(v) The 2nd and 3rd Defendants are not proper parties to the suit and their names should be struck out.”

The lower court in its Ruling delivered on 8/4/2008 dismissed the application of the Defendants/Appellants in its entirety. The Defendants/Appellants being dissatisfied with the Ruling of the lower court lodged an appeal against same by filing on 11/4/2008 a Notice of Appeal also with the same date. The said Notice of Appeal contains six grounds of appeal but appearing as five apparently due to wrong numbering. The said grounds of appeal shorn of their particulars read thus: –

“1. The learned trial Judge erred in law when he held that the Plaintiff (sic) have locus standi because the 1st Plaintiff’s name was mentioned in the Statement of Claim and Tenancy Agreement as a Landlord and the 2nd Plaintiff has a power of Attorney and thereby came to an erroneous decision occasioning a miscarriage of justice.

2. The learned trial Judge erred in law in the manner he resolved the third (3) (sic) ground of objection bothering on want of issuance and service of Statutory Notices on the Defendants as provided by Recovery of Premises Act ad (sic) thereby came to an erroneous decision occasioning a miscarriage of justice.
3. (Sic: wrongly numbered by the Appellants) The learned trial Judge erred in law when he held at page 12 of the Ruling that service of any processes, quit notice inclusive on the 1st Defendant is good service on the 2nd and 3rd Defendants.
4. The learned trial Judge erred in law when he held at pages 10 and 11 of the Ruling that the issue of failure to endorse the writ of summons in compliance with order (sic) 4 Rule 8(1) and order (sic) 11 Rule 31 are mere technicalities which does (SIC) not vitiate the service of the originating process on the Defendants.
5. The learned trial Judge erred in law in making out a case for the Plaintiffs different from the case made by them in the proceedings before him and thereby came to an erroneous decision in the case.
6. The Ruling is against the Weight of Evidence.”

In accordance with the Rules of this Court, parties duly filed and exchanged their respective briefs of argument. The appeal was entertained on 20/1/2009. Josiah Daniel-Ebune learned lead counsel for the Appellants in urging the Court to allow the appeal relied on and adopted the Appellants’ brief of argument dated 17/7/2008 and filed on the same day.

In the same vein Eshie Momoh Paul, learned lead counsel for the Respondents, equally relied on and adopted the Respondents’ brief of argument dated 14/8/2008 and filed on 20/4/2008 in urging the Court to dismiss the appeal.

A lone Issue was formulated for the determination of the appeal in the Appellants’ brief of argument. The issue is as to:

“whether the court below was right to have dismissed the Motion on Notice in lieu of demurrer when clearly it lacked jurisdiction because from the claim of the Respondents before it the action was not properly constituted and did not disclose a reasonable cause of action against the Appellants.”

Four Issues were formulated for the determination of the appeal in the Respondents’ brief of argument. They read thus: –

“(1) Whether from the facts and record available, the Lower Court was not right in holding that the Plaintiffs had Locus standi. (ground 1).

(2) Whether the learned trial judge was not right in holding that the service of the quit notice on the 1st Appellant who was the known tenant and who undoubtedly let the 2nd and 3rd appellants into occupation was enough service on them.

(grounds 2 & 3).

(3) Whether the Learned trial judge was not right in holding that justice should prevail over technicalities more especially as the non compliance was not occasioned by the Respondents. (ground 4).

(4) Whether from the evidence and facts before the Court, the learned trial judge was wrong in dismissing the application.

(grounds 5 & 6).”

The appeal shall be decided on the Issues formulated by the Respondents, as they actuate the complaints against the Ruling of the lower court better than the lone Issue formulated by the Appellants from their grounds of appeal and which Issue appears to run wild or winding in nature.

ISSUE 1 – WHETHER FROM THE FACTS AND RECORD AVAILABLE, THE LOWER COURT WAS NOT RIGHT IN HOLDING THAT THE PLAINTIFFS HAD LOCUS STANDI.

Dwelling on the Issue of locus standi, the Appellants having quoted extensively what the learned trial Judge said in the Ruling, accused him of descending into the arena given what he stated in respect of “Power of Attorney” vis-a-vis Deed of Agreement. The Appellants referred to pages 101-106 of the Record as showing their case in respect of the lack of locus standi of the Respondents. In this regard they stated their case to be that the cause of action is a tenancy contract and that the averments in the Statement of Claim are to the effect that “the 1stRespondent is unknown to the Appellants”, (See page 13 of the Appellants’ brief).

According to the Appellants, there are three landlords namely, two corporate persons and one natural individual having regard to the entire claim of the Respondents. The Appellants raised the question as to whether it was not until the lower court resolved the “this thory” (sic) issue that the proper plaintiff with locus can be identified. It is the contention of the Appellants that the 1stRespondent has no locus standi if the tenancy contract as disclosed in the Statement of Claim is between them and the 2nd Respondent. This is because the 1st Respondent in the circumstance is a stranger to the contract, and it does not matter if the contract unknown to the Appellants, was made for the benefit of the said 1st Respondent by the 2nd Respondent. The cases of Union Beverages Ltd v. Pepsi Cola Ltd 330 P. 16 (as cited in the Appellants’ brief); K.5,O, & Allied Products Ltd v, Kofa Trading Co. Ltd (1996) 3 NWLR (pt, 436) 244 and Thomas & Ors v. Olufosoye (1986) 1 All NLR 215 at 230 were cited in aid.

The Appellants submitted that given the cause of action and its subject matter, it was wrong of the lower court to have held that the 1st Respondent has locus standi based on the lone fact that her name was mentioned in the Statement of Claim and a tenancy agreement, which has no evidential value, In the alternative, the Appellants submitted that the moment the Donee chose to exercise the power under “the purported Power of Attorney” and had indeed done so before the court, then the Donor can no longer exercise the same. The case of Chime v. Chime (2001) Vol. 6 All NLR 222 was cited in aid.

Dwelling on the lack of locus standi on the part of the 2nd Respondent to institute the action, the Appellants stated the summary of their case to be that (i) it could only maintain the case on the authority of the 1st Respondent; (ii) to be able to do this, it must possess a valid power of Attorney; and (iii) that it could not maintain the action on the state of the Power of Attorney it exhibited, as it was executed by the Donor alone, That even if it were assumed that it is valid (without so conceding), it was still invalid and ineffectual as a legal document because as a limited liability company “Donor”, its document must be executed with or under the seal of the company by virtue of sections 71(1) and 76(i) of the Companies and Allied Matters Act, 1990. The case of Faro Bottling Co. Ltd v. Osuji (2002) 1 NWLR (Pt. 748) 311 at 316 was cited in aid. The case of Unijos & Anor v. Carlen (Nig) Ltd (1992) 5 NWLR (Pt. 241) 352 at 363 was also cited to show that due execution of documents as required by the enabling law is a condition precedent for the validity of documents and admissibility. In the premises, the Appellants said there was no valid instrument of authorisation from the 1st Respondent in favour of the 2nd Respondent vesting locus standi in it to maintain the instant action.

The Appellants further submitted that the most critical issue touching on the locus standi and competence of the Respondents, which has affected the jurisdiction of the court, is the fact that it is an abuse of court process for a Principal and its agent to at one and the same time jointly maintain a suit against the same Defendants for the same alleged injury. The cases of Ekuma v. Siiver Eagle Shipping Agencies Ltd (1987) 4 NWLR (Pt. 65) 472; Modupe Folarin v. Nigeria CA/L/229/87 (as cited by the Appellants in their brief) were cited in aid. In the premises, the Appellants said that the instant suit was not properly constituted, because the two Respondents are not competent to maintain it in a dual capacity. They also said that it was for the Principal to either sue alone or for the Attorney to do this.

This Court was urged to interfere with the decision of the lower court on this ground and set aside the same as the issue of competence of the plaintiffs is a vital and important one that touches on the jurisdiction of the trial court. The case of Jadcom Ltd v. Oguns Electrical (2004) 3 NWLR (Pt.859) 153 at 182 was cited in aid.

Dwelling on the Issue of locus standi, in their brief of argument, the Respondents submitted that the courts in many cases have defined locus standi as the legal capacity to sue or institute a suit and in this regard cited the cases of Senator Abraham Adesanya v. President of Nigeria (1981) 2 NCLR 358; and Adenuga v. Odumeru (2003) 14 NSCQR 285 at 298.

The Respondents said that the question to be asked and answered by this Court is whether they have sufficient interest in the subject matter of the instant suit having regard to facts disclosed by them and cited the case of Inakoju v. Adeleke & Ors (2007) 29 NSCQR (Pt. 2) 956 at 1068 in aid. It was said that it is the cause of action of the plaintiff that determines his locus standi and the case of United Nigeria Company Ltd v. Nhaman (2000) FWLR(Pt. 27) 1988 at 1999 was cited in aid. Cause of action, it was also said, can only be determined from the Statement of Claim and the cases of Cookey v. Fombo (2005) 22 NSCQR 411 at 423-424, and USN Plc v. Umeodugu (2004) 19 NSCQR 158 at 166 were cited in aid.

The Respondents said that in paragraph 1 of the Statement of Claim, it was averred that the 1st Respondent is the Landlord of the property, the subject matter of the suit and that her certificate of occupancy, which was pleaded, was attached. They further said that in paragraph 2, the 2nd Respondent was described as a limited liability company engaged in Estate Survey and Management engaged by the 1st Respondent as Attorney and that the Power of Attorney duly executed by the said 1st Respondent in favour of the 2nd Respondent was exhibited. The Statement of Claim, the Respondents said, further disclosed that the 1st Appellant, who is a business woman, is the known tenant of the Respondents, while the 2nd and 3rd Appellants who are limited liability companies were let into occupation of two out of the three wings rented by the 1st Appellant.

This Court was urged to hold that the Certificate of Occupancy attached to the Statement of Claim conferred sufficient interest and ipso facto, locus standi on the 1st Respondent as it bears her name. The case of Adubiara v. Etti & Ors (1962) LLR 104 at 105 was also cited to show that a landlord is a person entitled to the Immediate reversion of a property. It was also submitted that the 2nd Respondent had sufficient interest, though similar to that of the 1st Respondent by virtue of the Power of Attorney particularly as paragraph (D) thereof conferred the power to sue on it. It was the further submission of the Respondents, that the mere fact that the 1st Respondent donated a Power of Attorney to the 2nd Respondent, did not preclude the 1st Respondent from suing either alone or jointly with the 2nd Respondent and the case of Awarangbo v. Nakande (2000) 9 NWLR (Pt. 672) 341 at 366 was cited in aid. The Respondents submitted that in any event the presence of the 1st Respondent cannot and has not occasioned injustice to the Appellants.

They also argued that assuming without so conceding, that the lower court erred or was wrong by allowing the two Respondents to sue jointly, the appeal should not be allowed on that ground as this Court is always reluctant to allow an appeal on such an error as long as there is no miscarriage of justice and the case of Udegbunam v. FCDA (2003) 14 NSCQR 402 at 412 was cited in aid.

Dwelling on the submissions of the Appellants, that the 2nd Respondent lacks the locus standi to institute this suit due to the invalidity of the Power of Attorney, the Respondent said that the lower court was right when it held that a Power of Attorney being a deed poll, is not required, in law, to be signed by the Attorney, as it is an act of the Donor alone.

The case of Vulcan Gases Ltd v. Gesellsch-Craft Fur. Ind. (2001) 6 NSCQR 481 at 533-534 was cited in aid. Quoting the definition of “Power of Attorney” as stated in the said case to wit: ‘a formal instrument by which one person empowers another to represent him or act in his stead for certain purpose; it was submitted that the argument of the Appellants that the 2nd Respondent ought to have executed the Power of Attorney to make it valid was not founded in law. The book by S. O. Imahanobe on “Understanding Legal Drafting and Conveyance (2002), 1st Edition at page 348 paragraph 4” as well as Words and Phrases, Third Edition, Volume 2 by John B. saunders were also referred to as to the meaning of ‘Deed Poll’.

Dwelling on the arguments of the Appellants that the Respondents have no cause of action against the 2nd and 3rd Appellants, the Respondents submitted that the averments in their statement of claim (which disclosed that the said Appellants were in possession/occupation of two out of the three wings of the property rented by the 1st Appellant) showed that they (i.e. Respondents) have a cause of action against the said Appellants and that the learned trial Judge was right when he found to this effect. The case of Shell v. X.M. Federal Ltd (2006) 27 NSCQR 127 at 139 was cited on ’cause of action’. This Court was urged not to disturb the finding of the lower court that the 2nd and 3rd Appellants were in occupation of the property, the subject matter of this suit, which was based on the Statement of Claim and documents annexed thereto, unless it was perverse and the case of Echere v. Ezirike (2006) 27 NSCQR 149 at 161 was cited in aid.

What is meant by “locus standi”? The term locus standi or standing has been defined in a plethora of cases. “locus standi” or “standing” has been defined as denoting legal capacity to institute proceeding in a court of law. It is not dependent on the successor merit of a case; it is but a condition precedent to a determination of a case on the merits. See the case of JOSIAH KAYODE OWODUNNI V REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST & ORS (2000) 6 SCNJ 322. Similarly, the Supreme Court per Uwaifo, JSC; dwelling on “locus standi” in the case of BABATUNDE ADENUGA & ORS V. J.K. ODUMERU & ORS (2003) 4 S.C. (PART I) 1 at page 10 said thus: –

“…Locus standi denotes the legal capacity, based upon sufficient interest in a subject matter, to institute proceedings in a court of law to pursue a certain cause. In order to ascertain whether a plaintiff has locus standi the statement of claim must be seen to disclose a cause of action vested in the plaintiff and also establish the rights and obligations or interests of the plaintiff which have been or are about to be violated, and in respect of which he ought to be heard upon the reliefs he seeks ”

Indeed in the case of HON. MUYIWA INAKOJU & ORS V. HON. ABRAHAM ADEOLU ADELEKE & ORS [2007] All FWLR (Pt. 3S3) 3 at page 97 the Supreme Court per Tobi, JSC; reiterated the rule that the competence of a plaintiff to institute an action is gathered from the statement of claim and not from the evidence that is subsequently led in the suit.

It is also worthy of note that in the case of JOSIAH KAYODE OWODUNNI V REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST &. ORS (supra) the Supreme Court made it clear that different principles apply to the determination of the issue of locus standi in the realms of public law on the one hand, and private law on the other hand. It was stated that in the realm of private law the question of locus standi is merged in the issue of cause of action. For this reason it was stated in the said case (i) that a plaintiff who has no privity of contract with the defendant will fail to establish a cause of action for breach of the contract as he will simply not have a locus standi to sue on the contract and (ii) that a member of a ruling house who has no interest in a chieftaincy title against the successful candidate has no cause of action.

See also on the issue of what locus standi is and what the courts look into in determining whether or not a plaintiff has locus standi the cases of HERBERT O. EMEZI V. AKUJOBI DAVID OSUAGWU & ORS (2005) All FWLR (PART 259) 1891; OMEGA BANK PLC &. ANOR V. THE GOVERNMENT OF EKITI STATE & ORS [2007] All FWLR (Pt. 386) 658; IKEJA HOTELS PLC V. LAGOS STATE BOARD OF INTERNAL REVENUE [2005] All FWLR (PART 279) 1260; and CHIEF AKINPELU IYANDA & ORS V CHIEF AFOLABI LANIBA II (BAALE OF AWE) & ORS [2002] 33 WRN 40.

The law is equally settled that the term “cause of action” means no more than the bundle of facts and circumstances giving rise to the plaintiff’s enforceable claims against the defendant and that it is in the Statement of Claim that these have to be pleaded. In other words, it is settled law that the question as to whether an action discloses a cause of action is determined from the statement of claim. See CHEVRON NIGERIA LIMITED V. LONESTAR DRILLING NIGERIA LIMITED [2007] All FWLR (Pt. 386) 633 and RINCO CONSTRUCTION CO. LTD V. VEEPEE INDUSTRIES LTD & ANOR [2005] All FWLR {Pt. 264} 81 (insert). The authorities are therefore settled that the issue of locus standi is determined from the Statement of Claim; likewise the issue of cause of action.

I however cannot but observe that the parties in the instant appeal, in arguing the preliminary points of law raised before the lower court and indeed in their respective briefs of argument in this appeal, freely used and evaluated documents exhibited to the Statement of Claim. This is definitely wrong. The documents exhibited to the Statement of Claim were apparently so exhibited in satisfaction of the provisions of Order 4 Rule 15 of the Rules of the High Court of the Federal Capital Territory, Abuja. The documents have been so exhibited because they are copies of documents mentioned in the Statement of Claim to be used in evidence. That is, they constitute proposed or intended documentary evidence in respect of pleaded fact. It is at trial or hearing that the documents exhibited are admitted (if not found Inadmissible for any reason whatsoever) and later evaluated by the trial court In its judgment in order to ascribe appropriate weight to them. The case is then resolved as may be considered just by the lower court, having regard to the totality of credible evidence before it.

At the stage of entertaining the preliminary points of law raised by the Appellants, the lower court is not engaged in the trial or hearing of the Respondents’ case on the merits. It is also not concerned with the case set up by the Appellants as Defendants before the lower in their Statement of Defence at all. Accordingly there is no basis in law, for the Appellants in order to sustain their preliminary objection, to have engaged in the evaluation of the proposed documentary evidence by which the Respondents intend to establish their case at the hearing and which was duly attached to their Statement of Claim as required by the Rules of Court.

I am of the considered and firm view that if the Appellants had appreciated the position that the proposed documentary evidence exhibited by the Respondents are intended for use at the hearing of the substantive case, they (the Appellants) would have restricted themselves strictly to averments in the Statement of Claim in their bid to establish that the Respondents, jointly or severally, lack the locus standi to institute the instant case, or whether the suit discloses a reasonable cause of action and/or is competent.

The rationale of frontloading of witness statements and documents pleaded by a plaintiff, or which the plaintiff relies upon in the proof of his case, is designed to expedite trial by giving the defendant the overview of the case he has to contend with and to provoke an informed decision as to whether it is prudent to contest the case. Conversely, the same applies to the plaintiff, as the plaintiff having had the benefit of the overview of the defendant’s case, from the witness statements and documents exhibited by the defendant, would be able to make an informed decision as to whether or not the case he has instituted is worth pursuing.

From all that has been stated before now, I will therefore resolve the issue as to whether or not the Respondents (as Plaintiffs in the lower court) have the locus standi to institute the instant suit strictly from a consideration of the Statement of Claim and without giving the documents attached thereto the slightest consideration.

The reliefs sought by the Respondents have been reproduced in this judgment before now. The claims of the Respondents against the Appellants jointly and severally are for recovery of possession of ‘Wing ‘A’ of the first floor, and Wings ‘A’ & ‘B’ of the second floor of the property known as Prime Plaza which the 1st Appellant holds as tenant and occupied by the 2nd and 3rd Appellants’, ‘arrears of rent and mesne profits’, as well as an ‘order directing the property to be restored to its initial tenantable condition’. In paragraph 1 of the Statement of Claim, the Respondents averred to the effect that the 1st Respondent is the landlord of the property in question. Furthermore in paragraph 2 of the same process, the Respondents disclosed that the 2nd Respondent was engaged by the 1st Respondent to manage the property in question pursuant to a Power of Attorney donated by the said 1st Respondent.

The Respondents further disclosed in the Statement of Claim, how the 1st Appellant came to rent to property in question and later informed them that the 2nd and 3rd Appellants, which are her companies, were let into possession of part of the space rented by her.

The Appellants have argued that the 1st Respondent lacked the locus standi to institute the instant action as she is a stranger to the contract of tenancy. They also contend that it is immaterial if the 2nd Respondent made the contract for the benefit of the 1st Respondent.

The current judicial trend is that the court should be liberal on the issue of locus standi. Aside from this, the case of Owodunni v. Registered Trustees of CCC(supra) has been cited to show that the issue of locus standi and cause of action are merged in private law. The 1st Respondent, given the averments in the Statement of Claim hereinbefore alluded to, is the landlord of the property in question. The 1st Respondent is also the Donor of a Power of Attorney granted to the 2nd Respondent to manage the said property. There is nothing in law that prevents a Donor of a Power of Attorney from exercising the same power delegated. See the case of Chime v. Chime (supra) cited by the Appellants as well as that of Agwarangbo v. Nakande (supra) cited by the Respondents. The only time a Donor of Power of Attorney cannot exercise the power donated under the instrument is when the Donee has exercised the power first in time.

In determining the issue of locus standi and/or whether an action discloses a reasonable cause of action, the court is not expected to concern itself with the merits, or otherwise, of the case. Against the backdrop of the averments in paragraphs 1 and 2 of the Statement of Claim, I am of the firm view that the Respondents, who definitely qualify as having interest in the property, the subject matter of the litigation, have clearly disclosed their locus standi to maintain the action. Also as one of the reliefs being sought is one for the recovery of the premises alleged to be occupied by the Appellants, I find a reasonable cause of action to be disclosed against the Appellants by the Respondents. It is a totally different matter if the said Respondents, having regard to the defence of the Appellants, can be entitled to the reliefs being claimed.

The Appellants argued that locus standi of the Respondents has affected the competence of the lower court, because it is an abuse of court process for a principal and his agent, to at the same time as joint plaintiffs, maintain an action against them as defendants. This argument overlooks the settled position of the law that an action is properly constituted once there is present therein the name of a plaintiff with legal capacity to bring the action, as well as the name of a defendant with legal capacity to defend it. See the case of ALHAJA RAFATU AYORINDE &. ORS V. ALHAJA AIRAT ONI & ANOR (2000) 2 SCNJ 1.

It is clear that the 1st and 2nd Respondents are the landlord of the property in question in the instant case/Donor of the Power of Attorney granted to the 2nd Respondent and the Donee of the Power of Attorney respectively. That fact, along with the fact that they have jointly instituted the instant case as Co-Plaintiffs, has definitely not robbed the suit of a plaintiff that has the capacity to bring the action. At the worst, what exists in the situation is a surplus of plaintiffs. This, in law, does not render an action incompetent. This is because the settled position of the law is that once a party has the locus standi to sue, the non-joinder or mis-joinder of any other particular party, does not and cannot defeat the action, if the matter in controversy can be determined as between the parties actually before the court. See AKANNI V. OLANIYAN [2007] All FWLR (Pt. 380) 1534 at 1547 and A.G. FERRERO V. MR. AFAMEFUNA NNAMANI & ANOR [2006] All FWLR (pt. 339) 990 at 998.

The locus standi which I have found both the 1st and 2nd Respondents, respectively, to possess in my view, is sufficient to enable either or both of them maintain the instant action, It is for the lower court at the end of the day (i.e. after trial) to determine whether or not, judgment would be entered for the plaintiffs or one of them in the event the action succeeds. Issue 1 is accordingly resolved in favour of the Respondents.

In other words, I hold that the Respondents have locus standi to maintain the instant action. The finding of the lower court in that regard is upheld or affirmed.

ISSUE 2: WHETHER THE LEARNED TRIAL JUDGE WAS NOT RIGHT IN HOLDING THAT SERVICE OF THE QUIT NOTICE ON THE 1ST APPELLANT WHO WAS THE KNOWN TENANT AND WHO UNDISPUTEDLY LET THE 2ND AND 3RD APPELLANTS INTO OCCUPATION WAS ENOUGH SERVICE ON THEM.

Dwelling on this Issue in their brief of argument, the Appellants started by referring to the portion of the lower court’s Ruling where it was stated to the effect that though a company is a legal entity (albeit an artificial person) recognised by law, it acts through natural persons, i.e. its members; and that the 2nd and 3rd Appellants, in the eyes of the law, therefore can only act through the 1st Appellant. That service of any processes inclusive of quit notice on the 1st Appellant is good service on the 2nd and 3rd Appellants. And that the 2nd and 3rd Appellants are not entitled to quit notices aside from the ones served on the 1st Appellant being the Managing Director/Chief Executive Officer of the said 2nd and 3rd Appellants.

The Appellants also referred to the portion of the Ruling where the lower court held to the effect that the 2nd and 3rd Appellants are necessary parties in the suit as it is clear that they are in occupation of the property the subject matter of the suit; more so as they will be bound by its result or outcome having regard to the reliefs sought by the Respondents.

The Appellants, having reproduced the averments in paragraphs 26, 28, 29, 32, and 34 of the Statement of Claim, as disclosing the case of the Respondents concerning the 1st Appellant vis-a-vis the 2nd and 3rd Appellants respectively, said that it was settled that issuance and service of statutory notice is a condition precedent for the commencement of an action for recovery of premises. They further contended that its absence not only makes the action premature thereby denying the plaintiffs (i.e. Respondents) a right of action, but is also fatal to the entire proceedings. The case of Pan Asian African Co. Ltd v. NICON (1982) NSCC Vol. 13 page 293; and Sections 7, 9, 8(1)(A) and 28 of the Recovery of Premises Act, Cap. 544, Laws of Federation of Nigeria, 1990 were cited in aid.

For the period of the tenancy, the 1st Respondent was said to have continued to deal with the 1st Appellant who apparently had decided to sub-let her interest to the 2ndand 3rd Appellants. This subletting was regardless of the arrangements between the 2ndand 3rd Appellants and the 1st Appellant and to which the Respondent were not privies. It was submitted by the Appellants to the effect, that the issuance and service by the Respondents on the 1st Appellant alone, of one quit notice to recover the premises in question pursuant to an order of substituted service made by a District Court was fundamentally defective. This is against the backdrop that the 1st Appellant was not in physical possession and as the pasting of the Notice was done on the wall of the space occupied by the 2nd Appellant, while the 3rd Appellant is in occupation of a different floor; and that in any event the 2nd and 3rd Appellants were neither named in the Notice nor were separate Notices issued and served on them.

Citing the cases of G.O.K. Ajayi v. Lagos City Council (1969) 1 NSCC 340 at 349 and Adams v. Cape Industries Ltd (1991) 1 All ER 929 as deciding respectively that a statutory corporation is a separate entity from its member or employees; and that the principle of incorporation does not presume an agency relationship between a statutory corporation and a natural person, the Appellants argued to the effect that the 2nd and 3rd Appellants by virtue of their occupation of the property have become statutory tenants and were therefore entitled to be served with quit notices. The case of Oduye v. Nigeria Airways Ltd (1987) 1 NSCC Vol. 18 (Pt.1) 521 and Pan Asian African Co. Ltd (supra) were cited in aid.

In arguing this Issue, the Respondents stated the contentions of the Appellants to be as follows: –

(a) that the 2nd and 3rd Appellants who are occupying two out of the three wings of the property in question are legal entities distinct and separate from the 1st Appellant;

(b) that the tenancy relationship in respect of the property in question was between the 1st Appellant and the Respondents who may have sublet part thereof to the 2nd and 3rd Appellants.

(c) that the Respondents issued statutory notices only on the 1st Appellant by “substituted means by pasting”.

The Respondents while agreeing that the general principle of law is that occupants who entered lawfully with or without the consent of the landlord ought to be served notice by virtue of the provisions of sections 2 and 8 of the Recovering (sic) of Premises Act Cap. 544 laws of Federation of Nigeria 1990 however submitted that the said sections did not apply in the instant case as they did not contemplate a person who came into occupation through a tenant and is not a sub-tenant. The Respondents then went on to show how the cases of Pan Asian African Co. Ltd v. Nicon; and Oduye v. Nigeria Airways; cited by the Appellants were not applicable in the instant case given their peculiar facts. The case of Odua Investment v. Talabi (1997) 10 NWLR (Pt. 523) 1 at 56 was cited to show that a case is authority only for what it actually decides and is not even appropriate to quote it for a proposition that may seem logically to follow.

The Respondents said that the 2nd and 3rd Appellants are akin to wife and members of the family of a tenant let into occupation by the tenant and submitted that as long as service of notice have been effected on the tenant, the law did not require further notice on the other occupants. To hold otherwise according to the Respondents will be stretching the law to absurdity.

Though the Appellants have referred to the 2nd and 3rd Appellants as sub-tenants of the 1st Appellants so as to make them come within the definition of a tenant in section 2 of the Recovery of Premises Act, it is however the submission of the Respondents that the said section did not define a sub-tenant. Relying on the definition of ‘sub-tenant’ as provided in Black’s law Dictionary 6th Edition, the Respondents submitted that in the absence of evidence showing the existence of a sub-tenancy between the 1st Appellant and the 2nd and 3rd Appellants respectively, the submissions in that regard no matter how erudite could not constitute such evidence or be used to amend the pleadings before the court. The cases of Adone v. Ikebudu (2001) 8 NSCQR 174 at 190-191; and Ezuma v. Nkwo Mkt. Community Bank ltd (2000) FWLR (Pt. 28) 2243 at 2263 were cited in aid.

The parties in this appeal would appear to be ad idem that the service of notice to quit is a condition precedent that has to be fulfilled or satisfied in a suit for the recovery of premises.

In their brief of argument the Appellants cited the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 in respect of the principles of law that it is the claim before the court that determines its jurisdiction and as to when a court can be said to be competent. They also cited the case of Mobil Producing (Nig) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) 1 as imposing on the Respondents the duty to plead the fact of their having satisfied the conditions precedent for the bringing of the instant suit. I do not think the Appellants are correct in this regard. The case did not decide that a plaintiff must plead the satisfaction or fulfilment of a condition precedent which is not part of the cause of action when instituting his case. On the contrary, what the case decided, amongst others, is that a plaintiff who commenced an action which on its face is not incompetent has thereby invoked the presumed jurisdiction of the court and does not need to plead what is already presumed in his favour. That it is for a defendant to raise that and plead a matter that impugns the presumed jurisdiction of the court. Be that as it may.

It is also observed that despite holding in the said case, to the effect that a party whose interest would be affected if a relief sought in an action is a necessary party to the suit, the Appellants still argued in one breath in their brief that the Respondents have no cause of action against the 200 and 3rd Appellants who are disclosed in the Statement of Claim as being in occupation of part of the property which the Respondents seek to recover and therefore are not necessary parties and that the lower court was wrong in its findings to this effect. I definitely consider as preposterous the arguments advanced by the Appellants in aid of their stance that the Respondents have no cause of action against the 2nd and 3rd Appellants given the averments in the Statements of Claim as they relate to the said Appellants. In the same vein as the averments in the Statement of Claim patently disclose that the said 2nd and 3rd Appellants are in occupation of part of the property in question, one need not be a genius to know that whatever interest they may claim to have in the property will be affected by the relief being sought by the Respondents and that for this reason they glaringly qualify as necessary parties as found by the lower court. Accordingly I do not see how the findings of the lower court in these respects can be faulted.

The Respondents, having regard to their case and claims want to recover possession of the premises the subject matter of the instant action from the Appellants jointly and severally. (Underlining provided by me for emphasis). The Respondents no doubt do not dispute it that quit notices must be served on tenants from whom they want to recover possession. All that they have set out to do is to justify the finding of the lower court that the service of any processes on the 1st Appellant inclusive of quit notice is good service on the 2nd and 3rd Appellants.

The 1st Appellant is a natural being. The 2nd Appellant is an artificial person; likewise the 3rd Appellant. The very fact that these three persons bear different names in my respectful view clearly buttresses the point that they are all separate.

Now the Respondents have argued to the effect that the 2nd and 3rd Appellants are akin to the wife and members of the family of a tenant let into possession by the tenant and that it will be preposterous to require service of notices on them once the tenant through whom they were let into possession was served.

May I say that this analogy is not at parity with the situation in this case.

This is because if the landlord of a tenant in his bid to recover possession from the tenant does not see the wisdom in limiting his claim to the tenant to whom he rented the premises in question, but decides to also proceed against individual members of the tenant’s family, such landlord by that act has simply shown that he regards the affected members of family as holding a separate tenancy independent of that of his actual tenant and, a fortiori, he must serve the affected members of the tenant’s family with necessary processes inclusive of quit notices. In other words it will be ludicrous for a landlord in a bid to recover the premises he rented to his tenant to sue not only the tenant but in addition the wife and children of the said tenants.

The Respondents in their wisdom having decided to proceed against the 1st Appellant who they alleged to be their tenant, and the 2nd and 3rd Appellants respectively, who they alleged were put in occupation of the premises the subject matter of the instant action by the 1st Appellant, have thereby clearly shown that they did not take only the 1st Appellant as their tenant but that they equally recognise the 2nd and 3rd Appellants respectively as their tenants. This being the situation depicted by the Respondents by their action, each of the 2nd and 3rd Appellants was entitled not only to be served with its own copy of the originating process by which the instant action was commenced, but also had to be served with separate quit notice that determined its tenancy.

The Respondents having regard to the averment in paragraph 26 of their Statement of Claim have left no one in doubt that they served only one quit notice on all the Appellants pursuant to an order of substituted service procured by them. The Respondents averred to the same effect in paragraph 34 of their Statement of Claim, that only the 1st Appellant was served with a seven days notice of owner’s intention to recover possession.

Section 78 of the Companies and Allied Matters Act Cap. 59 LFN, 1990 makes provision for service of a court process and any other document on a company. In this regard, while a court process is to be served on a company in the manner provided in the rules of court, any other document is to be served on a company by leaving it at, or sending it by post to, its registered office or head office. The Rules of the High Court of the Federal Capital Territory, Abuja provide for service on a corporate body in Order 11 Rule 8 and the mode of service, is that a writ, or document should be given to any director, secretary, or other principal officer, or by leaving it at the corporate office. As already stated, the Respondents have left no one in doubt given the averments in their Statement of Claim that only one quit notice was issued to the 1st, 2nd and 3rd Appellants respectively from who they want to recover possession jointly and severally, and that the said quit notice was served on the 1st Appellant.

I have already stated to the effect that each of the Appellants is entitled to be served with a separate quit notice as they have been treated as separate tenants by the very fact of suing them as Co-Defendants with the 1st Appellant. The mode of service of a document as stipulated under the Companies and Allied Matters Act is different from that of a court process. I do not think it can be rightly argued that a quit notice is a court process. It falls under what the Companies and Allied Matters Act refers to as document and not court process. Accordingly any quit notice that was meant for each of the 2nd and 3rd Appellants ought to have been served on them by leaving the same at, or sending it by post to, their respective registered offices or head offices. It is if a quit notice is a court process that the quit notice issued in respect of each of the 2nd and 3rd Appellants (if any was indeed issued) can properly be served on the 1st Appellant who qualifies at least as a principal officer of each of them by being their Managing Director/Chief Executive Officer. And in such a situation, the Statement of Claim should have disclosed the fact of issuance and service of a total of three quit notices. However, as already stated, the Respondents have left no one in doubt that no separate quit notice was issued to each of the said 2nd and 3rd Appellants.

From all that has been said before now, I am therefore of the respectful view that the learned trial Judge not only over generalised when he said in his Ruling that: –

“More so, service of any processes, quit notice inclusive on the 1st Defendant is good service on the 2nd and 3rd Defendants” but also that he was wrong when he stated further that:-

“Therefore, it is clear that the 1st Defendant (now 1st Appellant) being the Managing Director/Chief Executive Officer of the 2nd and 3rd Defendants (2nd and 3rd Appellants) are not entitled to any quit notices aside from the ones served on the 1st Defendant (i.e. 1st Appellant).”

On the contrary, the 2nd and 3rd Appellants, having been sued as Co-Defendants with the 1st Appellant, are entitled to be served separate quit notices by leaving same at, or sending them by post to their respective registered offices or head offices. The Respondents have glaringly shown in their Statement of Claim that no quit notice was issued on the 2nd and 3rd Appellants at all, talk less of any such notice having been served. In the Circumstances, the non-fulfilment of the condition precedent for the institution of the instant action against the said 2nd and 3rd Appellants, for the recovery of the premises which they are alleged to occupy is, therefore, clearly apparent on the face of the instant proceedings. Accordingly, I find the action as it relates to the 2nd and 3rd Appellants incompetent.

The case of the 1st Appellant would however appear to be totally different. The case of Mobil Producing Unlimited (supra) cited by the Appellants clearly shows that it is a matter of jurisdictional incompetence which is not dependent on the ascertainment of fact or facts, that can properly be taken, before evidence is adduced in a case. See also the case of T.O. OWOSENI V. JOSHUA IBIOWOTISI FALOYE & ANOR [2005] All FWLR (PART 284) 220, where Oguntade, JSC, in his concurring judgment said thus, at page 249: –

“I agree that the question of absence of jurisdiction in a court to adjudicate on a matter can be raised at any stage of the proceedings and indeed for the first time on appeal. But before a defendant can raise the matter before evidence is led, the material giving rise to the complaint of absence of jurisdiction in the court before which the suit is brought must be apparent on the face of the statement of claim. Alternatively, the defendant may plead the issue himself. A defendant is not entitled to rely upon a defence, which is based on facts not stated in the statement of claim unless he alleges such facts specifically in his pleadings by way of special defence. See N.I.P.C. Ltd v. Bank of West Africa Ltd (1962) 1 All NLR 556 and Sketch v. Ajagbemokeferi (1989) 1 NWLR (Pt. 100) 678.”

The pronouncement quoted above would appear to reiterate what was said in the Mobil Producing Unlimited case when Ayoola, JSC said:-

“A plaintiff who has commenced an action which on the face of it is not incompetent is deemed to have invoked the presumed jurisdiction of the court. He does not need to plead what had already been presumed in his favour. On the other hand, a matter that impugns the presumed competence of the action should be raised by the opponent.”As already stated the Respondents disclosed in their Statement of Claim that a quit notice was issued and served on the 1st Appellant by order of substituted service. They also disclosed that the seven days notice of owner’s intention to recover possession was issued on the said 1st Appellant. The Appellants’ submissions in relation to the quit notice in question’, as they did regarding the issue of locus standi were not restricted to the averments contained in the Statement of Claim but were predicated on the quit notice and order of substituted service exhibited as documents which the Respondents intend to rely upon in the proof of their case at the trial. I have earlier said that this is not permissible in law. If there is any circumstance that impugns the validity of the quit notice and/or seven days notice of owner’s intention to recover possession, then it is for the Appellants to raise the same in their Statement of Defence and leave it for resolution at trial. The Appellants also have the choice of urging the lower court at the trial to hold that the notices in question are not valid in law, and not to attach any weight to it. They however cannot surreptitiously invite the lower court and this Court to embark on such an exercise in a motion brought to determine issues of law. In other words there is no jurisdictional incompetence disclosed in the Statement of Claim as it relates to the 1st Appellant.

This is because the Respondents have disclosed in the Statement of Claim the fact of issuance and service on the 1st Appellant of a quit notice and seven days owner’s intention to recover possession. It is a matter for resolution at the trial whether or not the evidence attached to the Statement of Claim in the proof of the averments in that regard sufficiently establishes the same. In conclusion, the instant case as it relates to the 1st Appellant cannot be held to be premature for want of valid notices as urged on this Court by the Appellants. The validity of the notices served on the 1st Appellant is for resolution at the trial. Issue 2 is therefore resolved in favour of the Appellants as I have found that the failure to serve the 2nd and 3rd Appellants with separate quit notices is not proper and that this has rendered the instant suit incompetent, as it relates to those particular Appellants.

ISSUE 3: WHETHER THE LEARNED TRIAL JUDGE WAS NOT RIGHT IN HOLDING THAT JUSTICE SHOULD PREVAIL OVER TECHNICALITIES MORE ESPECIALLY AS THE NON COMPLIANCE WAS NOT OCCASIONED BY THE RESPONDENTS Dwelling on this issue the Appellants submitted that the question of the breach of Order 11 Rule 31 of the Rules of the lower court transcended technicalities as service of originating process on a defendant is a jurisdictional issue. The Appellants submitted that the intendment and provision as to endorsement after service by a bailiff on Form 1 couched in a mandatory terms is to ensure that for all purposes the details of rules and provisions relating to service of originating process are fully complied with and the cases of Schroeder & Co. v. Major & Co. (Nig.) Ltd (1989) (pt. 101) 1; Hamp Adams v. Hall (1911) 2 KB 942; and Craig v. Kanssen(1943) 1KB 256 262-263 were cited in aid.

The Appellants submitted that the learned trial Judge having held that Rules of Court are very important, he ought to have borne in mind the spirit and intendment of the provision of each rule and that the only option open to him was to justify his decision under Order 2 Rule 2(a)- (c) which circumscribed the wide discretion he has under Order 2 Rule 2(1). That the learned trial Judge therefore was not at liberty to have dismissed the objection as a technicality when the Appellants complied with Order 2 Rule 2 by making a timeous objection. The case of Seaview Investments ltd v. Munis (1991) 6 NWLR (Pt. 195) 88 was cited in aid.

The Appellants urged this Court to set aside the decision of the lower court as there was failure on the part of the lower court to comply with the mandatory provisions relating to the endorsement of service on Form 1, as well as failure of the lower court to keep the record book of service. The lower court was said to have wrongly assumed jurisdiction in the circumstances and thereby came to an erroneous decision which has occasioned a miscarriage of justice.

The Respondents stated the contention of the Appellants on this issue to be that the failure or omission of the bailiff to have endorsed the Writ of Summons was a breach of Order 4 Rule 8 and Order 11 Rule 31 of the Rules of the High Court of the Federal Capital Territory Abuja and that this deprived the court of the jurisdiction to entertain the instant case.

The Respondents submitted that Order 4 Rule 8 was irrelevant to this case given its provision, while Order 11 Rule 31 only provides that record of service should be kept by the Court. The Respondents opined that the keeping of record or failure to do so is a matter which the Appellants ought to have proved before the lower court by evidence.

The Respondents said that the affidavit in support of the Appellants’ motion did not disclose any fact about the bailiff not registering the service in the court book. The case of Ezuma v. Nkwor Market (supra) was cited on the principle that address of counsel cannot take the place of evidence. It was submitted that the case of Schroeder & Co. v. Major & Co. Nig. Ltd (supra) cited by the Appellants is not apposite as it was decided under Order 6 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules 1972; while the Rules of the lower court has no corresponding provision. The Respondents said that the Rules of the lower court specifically provided for the mode in which service is to be proved in Order 11 Rule 28 and that this is by affidavit of service. The observation was also made that Order 6 Rule 16 of the High Court of Lagos State (Civil Procedure) Rules 1972 has been omitted from the 2004 Civil Procedure Rules of the said State and that what is therein now contained is in pari materia with the provision of Order 11 Rule 28 of the Rules of the lower court.

The Respondents submitted that the Appellants have not suffered any injustice given the position of the lower court to do substantial justice relying on the provision of Order 2 Rule 2 of its Rules. This is especially so as the failure complained of was not occasioned by any act or omission on the part of the Respondents and the lower court could not have visited the negligence (if any) on the part of the court on them.

The case of Okwueze v. Ejiofor (2001) FWLR (Pt. 48) at 1277 at 1291- 1292 was cited in aid. The Respondents urged this Court not to interfere with the discretion exercised in their favour by the learned trial Judge pursuant to Order 2 Rule 1(1) of the Rules of the lower court as the discretion was exercised judicially and judiciously. The case of Owners of M.V. Lupex v. Nigeria Overseas Chartering & Shipping Ltd (2003) 14 NSCQR 801 at 813 was cited in aid.

The Appellants, in their motion on notice before the lower court, sought for an Order striking out the statement of claim and dismissing the instant action for want of jurisdiction to entertain it. One of the grounds of the application (which the issue now under consideration is about) reads: –

“The service of the Originating Summons (sic) is incurably bad and fundamentally defective because there was non-compliance with the provision to indorse the mode, date of service and signature of the process server on the Writ of Summons and Order 4 Rule 8(1) and 11 Rule 31 at the time of service.”

May I say right away that it is simply incomprehensible to me how noncompliance with the provisions of the Rules of the lower court as to endorsement of mode of service, date of service and signature of the server on the writ of summons, as argued by the Appellants, can ever be said to render an otherwise competent action ‘fundamentally defective’, It is to be appreciated that the Rules of the lower court in Order 4 Rules 2, provide for what a writ of summons must contain. In Order 4 Rule 8(1) and (2) the Rules provide to the effect that a writ of summons shall conform with Forms 1, 2, 3 or 4 as in the appendix and that the Chief Registrar with the approval of the court is to frame relevant forms in case of proceedings for which forms are yet to be prescribed by the Rules. In Order 4 Rules 10, 11 and 12 the Rules further provide for various endorsements which a writ of summons is to contain. Order 4 Rule 15 expressly provides that a writ is issued when signed by a Registrar, or other officer of court duly authorized to sign the writ and which must be accompanied by (a) a statement of claim; (b) copies of documents mentioned in the statement of claim to be used in evidence; (c) witness statements on oath; and (d) a certificate of pre-action counseling.

It is not the case of the Appellants that the writ of summons that issued in this suit is in anyway defective as it concerns what must be contained therein prior to its issuance by the Registrar. This being the case, the non-endorsement by the server of the writ of the memorandum thereon relating to mode and date of service as well as the non-keeping by the court of a book for the recording of court process, being acts which occurred subsequent to the issuance of the writ, cannot vitiate the same. Indeed the submission of the Respondents that the mode of proving the fact of service of court processes under Order 11 Rule 28 of the Rule of the lower court is by affidavit of service, clearly downplays the effect of non-endorsement by the server of the memorandum relating to mode and date of service on a writ of summons and the non-keeping by the court of a book for the recording of court processes. It is to be observed that the Appellants are not under any guise challenging the affidavit of service sworn to by whoever served the writ of summons in the instant case. Instead of predicating whatever challenge they have concerning the service of the writ of summons in this case and the non-keeping of a book for recording court processes upon the ordinary English meaning of the relevant provisions of the Rules of the lower court, the Appellants would appear to want to re-write the Rules by importing therein Order 6 Rule 16 of the 1972 Civil Procedure Rules of the Lagos State High Court, which specifically provided to the effect that the person serving “a writ of summons or other originating process” shall indorse forthwith on a copy of the document served, a certificate as prescribed by Order 5 Rule 2 of that Rule, of the fact of the place, mode, and date of service of the process and shall duly sign and date the endorsement thereon. Suffice it to say, and as rightly submitted by the Respondents, the decision in the Schroder case cited by the Appellants clearly has no relevance in the instant case as the Rules of the lower court has no corresponding rule to that of Order 6 Rule 16 of the 1972 Civil Procedure Rules of the High Court of Lagos State.

Against the backdrop of all that has been said before now, can it be said that the lower court was wrong in treating the non-endorsement of the memorandum on the writ of summons as to mode and date of service as mere irregularities that do not vitiate the service of the originating summons (Sic) on the Applicants (i.e. Appellants)?

The law no doubt is that rules of court should be obeyed. However this Court has consistently held to the effect that as a general rule, noncompliance with rules of court (including its own Rules) is primarily an irregularity. See:

1. JULIUS ENAKHIMION V. EDO TRANSPORT SERVICES [2006] All FWLR (pt. 334) 1882 at 1904-1905 where this Court held to the effect that non-compliance with the rules of court does not prima facie invalidate the proceedings unless no reasons are adduced upon which the court can overlook or waive the non-compliance.
2. ELDER ANIETIE UKO v. MR. OKON EKPENYONG [2006] All FWLR(Pt. 324) 1927 at 1946 where this court held to the effect that non-compliance with rules of court would not be a ground for nullity unless such non-compliance amounts to denial of justice.Rules of Court, it must always be borne in mind, are actually rules of procedure made for the convenient and orderly hearing of cases. They are meant to aid the cause of justice and not to defeat it. For this reason, courts have been consistently admonished not to be slavish to their rules and therefore not read the rules in the absolute without recourse to the justice of the case. In other words, a most liberal approach is to be given to the interpretation of Rules of Court. See PRINCESS CATHERINE OLADUNNI ODU V. HON. JUSTICE R.O. FAWEHINMI (RTD) & 2 ORS [2006] All FWLR (pt. 301) 1848 at 1866. Indeed in this case, this Court, in order to bring out Clearly the effect of non-compliance with the rules of court in any given situation stated the difference between a defect in competence of an action and a defect in procedure to be that “a defect in competence of an action spells absence of jurisdiction” while “a defect in procedure shows a defect in the process of adjudication and not be fatal to jurisdiction”.

In the light of what has been stated immediately before now, it is therefore my respectful view that the lower court was eminently right to have treated the non-endorsement on the writ of summons that issued in this case of the mode and date of its service as mere irregularities which did not vitiate its service on the Appellants, particularly as the Respondents are in no way responsible for this.

My earlier finding on this issue remains, but assuming that the argument of the Appellants on this issue is correct, then the argument of the Appellants to the extent that it suggests that the lower court has no discretion to exercise, or that its discretion is curtailed because they raised the objection timeously, is of no moment as it is a settled principle of law that it is not every non-compliance with the rules of court that gives rise to absence of jurisdiction. This being so, even if the non-endorsement of the writ by the server of the mode and date of service thereon had been found to be fatal, and not to amount to mere irregularities, this cannot vitiate the writ but the service of the writ. A faulty or defective service of a writ cannot vitiate an otherwise valid or competent action; it is only the service that can properly be set aside.

The Appellants have not asked for setting aside the service of the writ of summons on them. They are more interested in dismissing the action. Suffice it to say that the ground of defective service cannot found the order dismissing the instant action. And as the Appellants have not asked for an order setting aside the service of the writ of summons on them, they equally cannot be granted the same. No court grants an order not sought for.

ISSUE 4: WHETHER FROM THE EVIDENCE AND FACTS BEFORE THE COURT, THE LEARNED TRIAL JUDGE WAS WRONG IN DISMISSING THE APPLICATION Dwelling on this issue, the Respondents submitted that the only material facts before the lower court were the averments in their Statement of Claim and documents attached thereto. That though the Appellants deposed to an affidavit in support of their application, there were no valuable facts deposed to therein to enable the lower court decide in their favour. It was further submitted that the affidavit violated sections 86 and 87 of the Evidence Act Cap. 112 LFN 1990 and ought to have been struck out. The case of Governor of Lagos State v. Ojukwu (2000) FWLR(pt. 50) p. (as cited in the Respondents’ brief) was cited in aid. The case of Osolu v. Osolu (2003) 14 NSCQR 750 at 763-764 was also cited as laying down the principles to guide this Court in concluding whether or not the decision of the lower court was against the weight of evidence.

The arguments canvassed by the Appellants in support of their submissions, that their objection ought to have succeeded at the lower court, hold good for the Issue now under consideration.

It has earlier been stated to the effect that the only material which the lower court ought to have relied upon for the resolution of the issues or points of law raised by the Appellants in their Statement of Defence and which they apparently placed before the lower court by their application, ought to have been facts contained in the Statement of Claim.

This court having now considered the points of law raised by the Appellants vis-a-vis the averments in the Statement of Claim has found that there is no basis for interfering with the Ruling of the lower court, save the portion of it where the learned trial Judge found the quit notice served on the 1st Appellant to be good service on the 2nd and 3rd Appellants, and that the said 2nd and 3rd Appellants are not entitled to any quit notices aside from the ones served on the 1st Appellant. It has earlier been stated that the lower court was wrong in respect of its findings in these regard. Accordingly, Issue 4 must be resolved against the Respondents to the extent that the lower court was wrong to have dismissed the application in its entirety on the basis of the aforementioned findings.

Before ending this judgment, I consider it appropriate to address briefly, the accusation the Appellants leveled against the learned trial Judge to the effect that he descended into the arena and exhibited bias against them, simply because he delved into the difference between a Power of Attorney and a Deed of Agreement.

I consider the accusation most uncharitable. Counsel should exercise restraint in casting aspersions on the Judge. The Appellants were the ones who in arguing the issue of lack of locus standi on the part of the 2nd Respondent raised the question of the validity of the Power of Attorney pleaded and exhibited to the Statement of Claim by the Respondents. The comparison the learned trial Judge made between Power of Attorney and Deed of Agreement was simply to show that the Appellants were wrong in their submissions on the matter. I do not think that the fact that the Respondents did not address the point, precluded the learned trial Judge from stating what he considered to be the right position of the law on the issue. There is no principle of law that states that a court must accept the submissions of a party on a matter simply because the other party did not counter the same. The situation would become more absurd when it is clear that the submission is manifestly incorrect in law. It is not a case of descending into the arena for a learned trial Judge to state the correct position of the law in respect of a matter where a party either due to dearth of research does not know the correct position of the law on the matter, or plainly sets out to mislead the court.

In conclusion this appeal partly succeeds as I have before now resolved in favour of the Appellants Issue 2 as well as Issue 4 to the extent that the learned trial Judge was wrong to have dismissed the application before him in its entirety. Having found that the 2nd and 3rd Appellants being Co-Defendants with the 1st Appellant are entitled to be served separate quit notices by leaving same at, or sending them by post to, their respective registered offices or head offices and that the failure to have done this constituted non-fulfilment of the condition precedent for the institution of the instant action against the said 2nd and 3rd Appellants for the recovery of the premises which they are alleged to occupy, I accordingly find the instant action as it relates to the 2nd and 3rd Appellants incompetent. The action as it relates to the said 2nd and 3rd Appellants therefore stands struck out against them. All the other grounds of the application however fail. The findings of the lower court in these regard are therefore affirmed.

I make no order as to costs.

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Other Citations: (2009)LCN/3199(CA)